In an October 2013 term featuring epic clashes over separation of
powers, high-tech search and seizure, the federal treaty power, and
freedom of religion, few paid much attention to an obscure standing
case. That case, Lexmark International, Inc. v. Static Control
Components, Inc., (1) concerned the parties entitled to bring suit for
false advertising under the Lanham Act. (2) In the course of resolving
that question, however, Justice Scalia's opinion for the Court
questioned the longstanding doctrine of "prudential" standing.
What the Court actually did in Lexmark was unsurprising, and its
analysis was not at bottom all that different from what courts had done
for some time. But the majority's discussion may spur far-reaching
changes in how lawyers think and (especially) talk about standing.

I. Justice Scalia's Treatise on Prudential Standing

Lexmark was a case about laser-printer toner--the powdery ink that
normally runs out right at the moment when one needs to print an
important document for filing. Toner cartridges are expensive, and a
considerable business has grown up around the refurbishment and resale
of used cartridges. Lexmark sought to reserve this business to itself by
requiring its customers to return used cartridges to it. Static Control,
however, invented a microchip that enabled other companies to refurbish
Lexmark's cartridges. (3) Lexmark sued Static Control under federal
copyright laws; Static Control counterclaimed under the Lanham Act,
arguing that Lexmark had falsely advised its customers that Static
Control's chip was illegal and that it was therefore illegal to go
to non-Lexmark remanufacturers for refurbishment. (4) Lexmark moved to
dismiss the counterclaim on the ground that Static Control lacked
standing to bring a claim under the Act; the remanufacturers themselves,
Static Control contended, would be a more direct plaintiff. (5) The
Court granted certiorari to determine "the appropriate analytical
framework for determining a party's standing to maintain an action
for false advertising under the Lanham Act." (6)

Federal Courts professors traditionally have taught standing as
including two sets of components--constitutional and prudential. The
"'irreducible constitutional minimum of standing,'"
deriving from Article Ill's "case or controversy"
requirement, demands that "[t]he plaintiff must have suffered or be
imminently threatened with a concrete and particularized 'injury in
fact' that is fairly traceable to the challenged action of the
defendant and likely to be redressed by a favorable judicial
decision." (7) Lexmark conceded, and the Court agreed, that
"Static Control's allegations of lost sales and damage to its
business reputation give it standing under Article III to press its
false-advertising claim." (8) Debate thus focused on the second,
"prudential" aspect of standing doctrine. That aspect has
included three general requirements: "the general prohibition on a
litigant's raising another person's legal rights, the rule
barring adjudication of generalized grievances more appropriately
addressed in the representative branches, and the requirement that a
plaintiff's complaint fall within the zone of interests protected
by the law invoked." (9) These limitations have long been thought
to "fit within a wide array of traditional doctrines of judicial
self-governance, such as equitable discretion, abstention, and forum non
conveniens." (10) Because they do not derive (at least directly)
from Article III, the prudential rules can be overridden by broad
legislative grants of standing to sue. (11)

Lexmark, however, called this structure into question. Finding the
label of prudential standing "misleading," Justice Scalia
undertook to "clarify[] the nature of the question at issue in this
case." (12) He noted that prudential standing has always been in
tension with the principle that "a federal court's obligation
to hear and decide cases within its jurisdiction is virtually
unflagging." (13) He might well have added that prudential standing
doctrines are often challenged as judge-made law, existing in
Griswoldian "penumbras" of Article III. (14) In any event,
Scalia noted that the aspect of prudence at issue in Lexmark--the
"zone-of-interests" test--has always been concerned with
Congress's intent in enacting the law in question. (15) The Court
quoted Judge Silberman's observation that "prudential standing
is a misnomer" in zone-of-interest cases, because the doctrine
inquires whether "this particular class of persons ha[s] a right to
sue under this substantive statute." (16)

the question this case presents is whether Static Control falls
within the class of plaintiffs whom Congress has authorized to sue
under [section] 1125(a). In other words, we ask whether Static
Control has a cause of action under the statute. That question
requires us to determine the meaning of the congressionally enacted
provision creating a cause of action. In doing so, we apply
traditional principles of statutory interpretation ... Just as a
court cannot apply its independent policy judgment to recognize a
cause of action that Congress has denied ... it cannot limit a
cause of action that Congress has created merely because 'prudence'
dictates. (17)

Despite reframing this as a statutory question rather than one of
"prudential standing," the Court applied the same "zone
of interests" analysis that it had pursued in prior cases, asking
whether Static Control fell "within the zone of interests protected
by the law invoked." (18) The Court found rather easily that it
did, noting that "Static Control's alleged injuries--lost
sales and damage to its business reputation--are injuries to precisely
the sorts of commercial interests the Act protects." (19) The Court
also inquired--apparently as a second element of construing the scope of
the Act's cause of action--whether Static Control's injuries
were "proximately caused by violations of the statute." (20)
Static Control satisfied this test as well, even though it was not the
direct target of Lexmark's allegedly false representation. Having
alleged "that it designed, manufactured, and sold microchips that
both (1) were necessary for, and (2) had no other use than, refurbishing
Lexmark toner cartridges," it followed "that any false
advertising that reduced the remanufacturers' business necessarily
injured Static Control as well." (21)

Lexmark was unanimous as to both result and rationale. With respect
to the result, the case seems relatively straightforward; the
interesting questions arise from the Court's explicit shift away
from the traditional rubric of prudential standing. That shift raises a
number of questions that are likely to bedevil the lower courts.

II. Standing Questions after Lexmark

Writing in 1988, Professor (now judge) William Fletcher
reinterpreted standing doctrine as grounded in the substance of the
plaintiff's claim--not in general principles emanating from Article
Ill. (22) "Standing," Fletcher wrote, "should simply be a
question on the merits of plaintiff's claim;" hence,
"[t]he essence of a true standing question is the following: Does
the plaintiff have a legal right to judicial enforcement of an asserted
legal duty?" (23) It followed that "[t]his question should be
seen as a question of substantive law, answerable by reference to the
statutory or constitutional provision whose protection is invoked."
(24) Fletcher urged that this inquiry should replace the traditional
constitutional requirements courts had found in Article III, such as
injury-in-fact, and that position remains heresy at the Supreme Court.
But one may fairly read Lexmark as adopting Fletcher's analysis for
purposes of prudential standing. The thrust of Justice Scalia's
opinion, after all, is to replace general, judge-made notions of
prudence with a substantive inquiry into the intent of particular
statutory provisions.

This is a significant shift in how the Court talks about standing.
It is likely to raise a number of questions.

A. Will Lexmark Govern Other Aspects of Prudential Standing?

As already noted, the zone-of-interests test upon which the Court
focused in Lexmark has always been a question of the substantive intent
behind the particular legal provision forming the basis of the
plaintiff's underlying claim. As such, Judge Fletcher's
substantive vision of standing is a natural fit for the
zone-of-interests doctrine. It is less clear, however, how that vision
can apply to more general principles, such as the general prohibition on
third-party standing or the bar to generalized grievances. These, after
all, have been seen as generally-applicable requirements.

The Court addressed these other aspects of traditional prudential
standing in a footnote. (25) Justice Scalia suggested that cases raising
"generalized grievances" are actually "barred for
constitutional reasons, not 'prudential' ones." (26) That
statement arguably overlooked cases like FEC v. Akins, (27) in which the
Court seemed to suggest that the constitutional "concrete
injury" and the prudential "no generalized grievances"
principles were related but distinct. Akins rejected a prudential
challenge to standing on the ground that Congress had specifically
conferred a statutory right to sue on the plaintiff, thereby obviating
any prudential hurdles to standing. (28) It nonetheless considered the
Government's argument that plaintiff had only a "generalized
grievance," noting that the precedents inconsistently referred to
this objection in (sometimes) constitutional and (sometimes) prudential
terms. (29) In considering this argument, however, Justice Breyer's
majority opinion focused on whether the plaintiff's injury was too
"abstract" (30)--a requirement more in keeping with the
constitutional notion of "concrete injury." That would seem to
leave room for a prudential principle of "generalized
grievance" that, as the Court said in Warth v. Seldin, comes into
play "when the asserted harm is ... shared in substantially equal
measure by all or a large class of citizens." (31) To complicate
matters further, Justice Scalia's dissent in Akins focused not on
whether the plaintiff's injury was "concrete" but rather
upon whether it is "undifferentiated" from the injury shared
by many others. (32) But again, this would leave room for a prudential
category of "generalized grievance"--not at issue in
Akins--for injuries that are simply widely shared.

Prior to Lexmark, then, one could plausibly view the constitutional
"concrete injury" requirement and the prudential bar on
"generalized grievances" as protecting similar values, but to
different degrees. Both were designed to prevent the courts from
intervening in broad controversies better suited to the political
branches. But the recognition of a constitutional core within a
prudential penumbra allowed Congress flexibility to permit claims by a
broad class of persons so long as their injuries were sufficiently
concrete. Justice Scalia's more recent comment in Lexmark is
plainly dictum, but it strongly suggests that there may simply be no
more "generalized grievance" rule distinct from the
constitutional minimum of a "concrete injury."

The Court admitted, however, that "[t]he limitations on
third-party standing are harder to classify," although it pointed
out that prior cases had seen third-party standing as "closely
related to the question whether a person in the litigant's position
will have a right of action on the claim." (33) A line of cases
under 42 U.S.C. [section] 1983 does treat third-party issues just this
way: In asking whether beneficiaries of a federal spending condition may
enforce that condition by a private suit against state or local
officials, the Court has explicitly imported its analysis of private
rights of action from Alexander v. Sandoval (34) and similar cases. (35)
These cases suggest third-party standing issues can likewise be handled
as issues primarily of Congress's intent with respect to particular
statutory schemes.

What about the Court's more exotic prudential rules? In Elk
Grove Unified School District v. Newdow, (36) for example, the Court
held that the father of a student in public school lacked standing to
challenge the school district's policy of reciting the Pledge of
Allegiance to open each school day. The trouble was that the
child's mother--who had sole legal custody under state law--opposed
the suit and argued that it would undermine the child's best
interests. This precluded the father from suing as his daughter's
"next friend" and forced him to rely on an injury to his own
right to inculcate his atheistic beliefs in his child. The extent of
that right was murky in this circumstance, however, given the
mother's conflicting prerogatives and the possible threat to the
child's best interests. (37) Not entirely surprisingly, the Court
punted, holding that "it is improper for the federal courts to
entertain a claim by a plaintiff whose standing to sue is founded on
family law rights that are in dispute when prosecution of the lawsuit
may have an adverse effect on the person who is the source of the
plaintiff's claimed standing." (38)

Chief Justice Rehnquist's concurrence in Newdow criticized the
majority for recognizing a "novel prudential standing
principle" applicable to cases touching on domestic relations. (39)
The case may be better read, however, as an acknowledgment that despite
the crystallization of particular prudential standing doctrines--such as
the one-of-interests test or the third-party rule--the courts retain a
more general discretion to dismiss cases on case-specific prudential
grounds. (40) In Newdow, those grounds included a federalism-based
respect for the state's primary authority over the crucial family
law principles involved, (41) as well as the imperative to avoid
decision of a difficult constitutional question under the Religion
Clauses. (42) Whatever one thinks of cases like Newdow, it is impossible
to assimilate them either to questions of congressional intent (as
Lexmark did with zone of interests and as might be done for third-party
standing) or to the constitutional requirement of a "case or
controversy." And for reasons I explore further below, the Court is
unlikely to abandon prudential reasoning altogether.

B. Has the Court Created a New Rule of Prudential Standing?

Traditional accounts of prudential standing feature three general
requirements: (1) the rule against third-party standing; (2) the
prohibition on generalized grievances; and (3) the zone-of-interests
test. The Court has occasionally come up with additional, more
particularistic principles, such as Newdow's rule against
conferring standing where it would interfere with principles of state
family law. (43) But the Court's treatment of proximate causation
in Lexmark seemed to recognize a principle of general applicability that
had not been part of the Court's prudential standing doctrine.
Justice Scalia wrote that "we generally presume that a statutory
cause of action is limited to plaintiffs whose injuries are proximately
caused by violations of the statute." This principle, he said,
"has been 'a well established principle of [the common]
law" "[f]or centuries," and it is part of the legal
background against which Congress is presumed to legislate. (44)

This is hardly an outlandish requirement, and the Court did not
apply it particularly strictly in Lexmark. But the Court had never
mentioned it before as a part of prudential standing doctrine. Neither
does it feature prominently in the Court's jurisprudence concerning
the existence and scope of private rights of action under federal
statutes. That jurisprudence, in its permissive days, focused on the
statute's underlying policy; nowadays, in a more restrictive vein,
it looks to statutory text. (45) Only time will tell whether the
Court's identification of proximate causation as a generally
applicable limit on federal statutory causes of action will provide a
new line of attack for defendants.

The Lexmark Court's treatment of proximate causation does
suggest that the Court may hang onto the notion of general rules of
non-constitutional standing--whether it calls them
"prudential" or not. The trouble with an approach grounded
entirely in Congress's substantive intent with respect to
particular statutes is that that intent is frequently opaque or
nonexistent. Congress frequently does not specify exactly whom it wishes
to be able to sue, even when it expressly creates a private right of
action. In such cases, most of the work of interpretation will be done
by default rules--general presumptions concerning what Congress would
have wanted if it had confronted the problem explicitly. (46) Justice
Scalia's opinion in Lexmark characterized its proximate causation
analysis in just this way: "Congress, we assume, is familiar with
the common-law rule [limiting plaintiffs to those whose injuries are
proximately caused by the legal violation] and does not mean to displace
it sub silentio." (47) The requirement of proximate causation thus
functions as a general rule of non-constitutional standing applicable
across statutory schemes, unless Congress specifically displaces it.
(48)

Ironically, the Court's discussion of proximate causation in
Lexmark may have the unintended consequence of loosening the causation
element of constitutional standing. Article III requires not only a
concrete injury in fact, but that this injury be "fairly
traceable" to the challenged conduct and "redressable" by
the requested relief. (49) Both of these elements fall under the rubric
of causation--traceability is causation running backward from the
plaintiff's injury to the challenged conduct, while redressability
is causation running forward from a judicial order ending the case to
the remediation of the original injury. In Lexmark, Justice Scalia
commented that "[p]roximate causation is not a requirement of
Article III standing, which requires only that the plaintiff's
injury be fairly traceable to the defendant's conduct." (50)
That statement strongly suggests what might not otherwise have occurred
to most observers, which is that the Article III causation standard must
be something kinder and gentler to plaintiffs than proximacy.

C. Will the Court's Restrictive Implied Rights of Action
Jurisprudence Creep into the Zone-of-Interests Analysis?

Lexmark's analysis of whether Static Control's claim fits
within the Lanham Act's zone of interests was fairly conventional.
What was new was the Court's relocation of zone-of-interest
analysis from an aspect of standing to a question of the scope of the
plaintiff's underlying cause of action. That relocation will be of
interest primarily to academics--unless and until it turns out to affect
the test's application.

There is some reason to think that it might. In particular, the
Court's analysis of private rights of action has become
increasingly strict in recent years. The Court has imposed a virtual
moratorium on the recognition of new implied rights of action, (51)
repeatedly refused to expand the scope of previously-recognized implied
rights under both federal statutes and the Constitution, (52) and even
extended its restrictive approach to express statutory causes of action.
(53) If future development of the zone-of-interests test takes place in
this environment, that test may well be construed more restrictively.
Significantly, the Lexmark Court confined the import of prior statements
that the zone-of-interests test is "not especially demanding"
to claims brought under the Administrative Procedure Act and emphasized
that "the breadth of the zone of interests varies according to the
provisions of law at issue." (54) This language strongly implied
that the Court might not be so generous in other contexts--as did its
earlier citation to Alexander v. Sandoval, (55) the Rehnquist
Court's leading decision cutting back on implied rights of action.

D. What Other Effects Will Making Prudential Standing Concerns Part
of the Merits Have?

The Lexmark opinion identified one important effect of relocating
the concerns previously considered under prudential standing to become
part of substantive analysis of the plaintiff's cause of action.
Justice Scalia noted that "the absence of a valid (as opposed to
arguable) cause of action does not implicate subject-matter
jurisdiction, i.e., the court's statutory or constitutional power
to adjudicate the case." (56) This has a number of important
effects. Procedurally, a defendant's motion to dismiss based on
zone-of-interests arguments should rest on Federal Rule 12(b)(6), not
12(b)(1), which deals with lack of jurisdiction. As a non-jurisdictional
argument, zone of interests may not be raised at any point in the
litigation, but must be timely advanced like other merits contentions.
And while courts may not employ "hypothetical standing" to
avoid a difficult Article III question by resolving the case on an
easier merits argument, (57) they will be able to postpone consideration
of zone of interests (and possibly other prudential standing-type
arguments) in this way.

Perhaps a more surprising consequence would affect federal causes
of action litigated in state court. Prudential standing, after all, has
generally been justified as part of the federal courts' inherent
authority to control litigation of cases that come before them, as well
as a penumbra-like outgrowth of Article III itself. That sort of
principle would, of course, be limited to federal court; state courts
are not subject either to Article III or the inherent authority of
federal judges. And many states have taken advantage of this fact to
offer broader standing rules that, for example, permit questions of
public import to be more readily litigated by a broader class of parties
or even served up for advisory opinions. (58)

If principles previously considered part of prudential
standing--like zone of interests or the restriction on third
parties--are instead part of the underlying federal cause of action,
then they are substantive law binding on the state courts. Plainly, if
Lexmark had come out the other way on the merits, no state court would
have been free to hear Sonic Control's counterclaim on the theory
that its state law took a broader view of standing. The claim would
simply not have been actionable under the Lanham Act, in any forum. (59)
Questions might also arise whether state courts may take a narrower view
of standing in areas previously thought to be governed by prudential
principles. After all, state courts generally may not decline to hear
federal claims under the rule of Testa v. Katt. (60) It is possible that
a state's restrictive standing rules might be considered a
generally-applicable "valid excuse"--a longstanding exception
to Testa (61)--but this is far from certain. And state court rulings on
questions like the zone of interests covered by federal statutes will
now be appealable to the U.S. Supreme Court.

Critics of the prudential standing doctrines frequently assert that
"a federal court's obligation to hear and decide cases within
its jurisdiction is virtually unflagging." (62) The canonical
"unflagging obligation" language first appeared in Colorado
River Conservation District v. United States, (63) but the general idea
traces much further back to Chief Justice Marshall's
even-more-canonical statement in Cohens v. Virginia that "[w]e have
no more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given. The one or the other would be
treason to the constitution." (64) Yet the pedigree of these
statements is highly instructive. Colorado River is a famous abstention
case in which the federal courts declined to exercise their
jurisdiction. (65) And Cohens is a sovereign immunity case, construing a
principle that deprives federal courts of jurisdiction in a wide variety
of circumstances (and which is notoriously difficult to square with the
constitutional text). (66) If the federal courts' jurisdictional
obligations are to be truly "unflagging," a great deal of
established doctrine will have to go besides prudential standing.

Consider, for example, the other justiciability doctrines besides
standing. Although the Supreme Court has grounded the ripeness
requirement in Article Ill's "case or controversy"
requirement, (67) ripeness generally turns on a flexible inquiry
concerning "the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration." (68)
These factors derive in part from equitable considerations and are
largely prudential in nature; moreover, the Court has suggested that
some ripeness concerns may be overridden by statutes directing speedy
adjudication. (69)

Similarly, although the mootness doctrine has been aptly described
as inquiring whether the plaintiff retains the concrete injury that gave
him standing when the case was filed, (70) it likewise incorporates
significant prudential elements. Important exceptions to the mootness
doctrine turn on prudential concerns about the conduct of litigation,
such as the need to permit adjudication of claims that expire quickly
(71) or to facilitate resolution of claims on a class-wide basis. (72)
As Chief Justice Rehnquist observed almost three decades ago,
"[t]he logical conclusion to be drawn from these cases, and from
the historical development of the principle of mootness, is that while
an unwillingness to decide moot cases may be connected to the case or
controversy requirement of Art. III, it is an attenuated connection that
may be overridden where there are strong reasons to override it."
(73)

Mootness and ripeness are both, in other words, mostly prudential
in nature. Nor are they the only other examples where the federal courts
have found their obligation to decide cases within their constitutional
and statutory jurisdiction to be, well, flagging. The various abstention
doctrines permit or require federal courts to defer to state courts in
various contexts, based on considerations of comity, federalism,
constitutional avoidance, and judicial efficiency. (74) The act of state
doctrine, which prevents domestic courts from reviewing the legality of
an official act of a foreign government within its own territory, rests
largely on prudential concerns about judicial interference with the
foreign policy of the political branches. (75) Federal courts have
asserted discretion to create exceptions to Congress's general
provision for subject matter jurisdiction over cases "arising
under" federal law, based on prudential judgments about the
strength of federal interests and the likely impact on federal
caseloads. (76) And the federal courts routinely dismiss habeas corpus
petitions filed by state prisoners who have failed to present their
claims to the state courts, notwithstanding that such dismissals rest on
prudential concerns about federalism rather than jurisdictional
restrictions. (77)

It is highly doubtful that all of this doctrine is to go by the
wayside in the wake of Lexmark. Judges have always formulated rules for
the decision of cases that constrain their powers more narrowly than
external sources--constitutional and statutory jurisdictional
provisions--would permit. But if that is true, then the Court will need
to explain why its concerns about judge-made prudential rules are more
pressing in some areas than in others. Justice Scalia was surely right
to ground the zone-of-interests doctrine more squarely in
Congress's intent, and that no doubt explains Lexmark's
unanimity. One strongly suspects that a general assault on other
prudential doctrines, such as the ones noted above, would prove
considerably more controversial.

CONCLUSION

One is tempted to suggest that Scalia's "clarifying"
discussion of standing in Lexmark has done precisely the opposite. That
would be unfair, however. Ever since Judge Fletcher's seminal
article, it has been an open secret of standing law that standing is
not--as the Court frequently protests--entirely divorced from the merits
of the plaintiff's claims. By acknowledging that fact, at least
with respect to prudential standing, Lexmark does hold out hope of
placing standing doctrine generally on a firmer footing. At the same
time, the Court will need to recognize that it cannot do without
prudential rules entirely. Then the hard work of specifying which
prudential rules are legitimate, which are not, and why can begin.

(14.) Justice Scalia made just that point in a well-known law
review article over three decades ago. See Antonin Scalia, The Doctrine
of Standing as an Essential Element of the Separation of Powers, 17
SUFFOLK U.L. REV. 881, 885 (1983). For a more recent version of the
criticism, see S. Todd Brown, The Story of Prudential Standing, 42
HASTINGS CON. L. Q. 95, 116 (2014).

(15.) The Court has sometimes applied zone-of-interest-like
analysis to constitutional provisions. It has held, for example, that
the Fourth Amendment generally protects the privacy interests of the
owner of a property but often does not extend to her guests. See, e.g.,
Minnesota v. Carter, 525 U.S. 83, 89-91 (1998). Persons other than the
property owner, in other words, often fall outside the Amendment's
zone of interests. Debate about whether corporations have standing to
invoke provisions like the First Amendment also fall into this category.
See, e.g., Citizens United v. FEC, 558 U.S. 310 (2010). Analysis in such
cases has generally focused not on general principles of standing but
rather on the substantive content and intent of the provision at
issue--much as in the statutory cases.

(22.) William A. Fletcher, The Structure of Standing, 98 YALE L.J.
221 (1988). For a recent symposium on this seminal article, see Heather
Elliott, The Structure of Standing at 25: Introduction to the Symposium,
65 ALA. L. Rev. 269 (2013).

(23.) Id. at 223, 229.

(24.) Id. at 229.

(25.) See Lexmark, 134 S. Ct. at 1387 n.3.

(26.) Id.

(27.) 524 U.S. 11 (1998).

(28.) See id. at 19.

(29.) See id. at 23.

(30.) See id. at 23-24.

(31.) 422 U.S. 490, 499 (1975).

(32.) See Akins, 524 U.S. at 35 (Scalia, J., dissenting). Justice
Scalia pointed out that when many people suffer similar injuries in a
mass tort--physical burns, for example--each person's injury is
differentiated and particular to them, even if others suffer similar
harm. See id.

(42.) See id. at 17 ("When hard questions of domestic
relations are sure to affect the outcome, the prudent course is for the
federal court to stay its hand rather than reach out to resolve a
weighty question of federal constitutional law.").

(52.) See, e.g., Cent. Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164, 190-91 (1994) (rejecting calls to
extend the implied private right of action under SEC Rule 10b-5 to
aiders and abettors); Stoneridge Inv. Partners, LLC v.
Scientific-Atlanta, Inc., 552 U.S. 148, 165 (2008) (observing that
"[c]oncerns with the judicial creation of a private cause of action
caution against its expansion. The decision to extend the cause of
action is for Congress, not for us"); Minneci v. Pollard, 132 S.
Ct. 617, 620 (2012) (rejecting an effort to extend Bivens to cover an
Eighth Amendment claim against employees of a privately operated federal
prison); Wilkie v. Robbins, 551 U.S. 537, 562 (2007) (rejecting a
request to extend Bivens to cover harassment and intimidation of the
plaintiff by the Bureau of Land Management); see generally Corr.
Services Corp. v. Malesko, 534 U.S. 61, 68 (2001) (noting that since
1980, the Court has "consistently refused to extend Bivens
liability to any new context or new category of defendants").

(59.) One might still raise such a claim if the federal-law
violation could be incorporated as an element in a state-law cause of
action. Cf. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986)
(involving a state-law tort claim employing violation of a federal
regulatory standard to establish the element of fault).

(70.) See Henry P. Monaghan, Constitutional Adjudication: The Who
and When, 82 YALE L.J. 1363, 1384 (1973) (characterizing mootness as
"the doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness)").

(71.) See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973) (recognizing
an exception where an issue is "capable of repetition, yet evading
review"); see also Honig v. Doe, 484 U.S. 305, 330 (1988)
(Rehnquist, C.J., concurring) ("If our mootness doctrine were
forced upon us by the case or controversy requirement of Art. III
itself, we would have no more power to decide lawsuits which are
'moot' but which also raise questions which are capable of
repetition but evading review than we would to decide cases which are
'moot' but raise no such questions.").

(72.) See, e.g., U.S. Parole Comm'n v. Geraghty, 445 U.S. 388
(1980).

(73.) Honig, 484 U.S. at 331 (Rehnquist, C.J., concurring).

(74.) See Colo. River Water Conservation Dist. v. United States,
424 U.S. 800 (1976) (requiring abstention where parallel state and
federal litigation would massively waste resources); Younger v. Harris,
401 U.S. 37 (1971) (requiring federal courts to abstain to avoid
interference with pending state criminal proceedings); R.R. Comm'n
of Tex. v. Pullman Co., 312 U.S. 496 (1941) (requiring abstention where
an unsettled question of federal constitutional law may be avoided
depending on the resolution, by a state court, of an unsettled state law
question).